03/31/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0635

DA 19-0635 FILED STATE OF MONTANA, MAR 3 1 2020 Bowen Greenwood Plaintiff and Appellee, Clerk of Supreme Court State of Montana

v. ORDER MYRON CUNNINGTON, Defendant and Appellant.

On November 6, 2019, self-represented litigant Myron Cunnington filed an Affidavit and "Petition to Vacate Judgment" in his Flathead County District Court Cause No. DC-13-381 (B), that was docketed as a Notice of Appeal. After receipt ofthe record, Cunnington timely filed his opening brief. The Assistant Attorney General for the State of Montana moves this Court for the appeal's dismissal because "an additional appeal or other collateral relief is inappropriate in this matter." The State provides the procedural backdrop, which we summarize here. In February 2014, Cunnington pleaded guilty to two counts offelony criminal possession ofdangerous drugs in the Flathead County District Court. The District Court sentenced him to the Montana State Prison for two, consecutive five-year terms in April 2014. Cunnington began serving his probationary term and in October 2015, the State filed a petition for the revocation of his suspended sentence. In late November, the court revoked Cunnington's sentence and imposed two, five-year prison terms (hereinafter 2015 sentence upon revocation). Cunnington initially applied for review with this Court's Sentence Review Division and then later vacated this review because Cunnington would be seeking an appeal.

On February 24, 2016, counsel for Cunnington filed a notice of appeal of the 2015 sentence upon revocation. Appellate counsel later sought withdrawal, pursuant to § 46-8- 103(2), MCA,and Anders v. Califbrnia,386 U.S.738,87 S. Ct. 1396(1967). In thefinders brief, counsel raised the issue of whether the District Court erred when it denied Cunnington's motion for substitution ofjudge filed at the cammencement ofhis revocation proceedings. Appellate counsel pointed out that Judge Allison had represented Cunnington in the Youth Court in the 1980s and that Cunnington may have believed that the substitution procedure was available to him at the start of the revocation proceedings.

Ciinnington did not file a response in the time allowed by this Court. In a December 16, 2016 Order, after independently examining the record, this Court dismissed Cunnington's appeal, concluding that "there are no arguments with potential legal merit that could be raised on appeal in this case." State v. Cunnington, No. DA 16-0124, Order (Mont. Dec. 13, 2016).

The State now requests dismissal because Cunnington's instant appeal is untimely and procedurally barred. The State points out that Cunnington had the opportunity to raise such issue in his direct appeal and that his counsel on appeal did so. Regardless, the State posits that Cunnington is foreclosed from seeking an appeal of the 2015 sentence upon revocation because this Court has already had such an appeal and because Cunnington has , not demonstrated extraordinary circumstances to warrant an out-of-time appeal. M. R. App. P. 4(5)(b)(i) and M. R. App. P. 4(6). Moreover, the State highlights that even construing Cunnington's appeal as a form of postconviction relief, it is improper.. See § 46-21-101(1), MCA (petition for postconviction relief must be filed in the sentencing court) and § 46-22-101(2), MCA (habeas corpus relief is not available for sentences upon revocation).

We agree with the State that this appeal is not properly before this Court. "[T]he supreme court's dismissal ofan appeal or cross-appeal is with prejudice and constitutes the finaljudgment ofthe supreme court." M.R.App.P. 19(2). We conclude that this dismissal , of Cunnington's second appeal for his 2015 sentence upon revocation is warranted here.

Therefore,

IT IS ORDERED that the State's Motion to Dismiss Appeal is GRANTED and this appeal is DISMISSED with prejudice.

IT IS FURTHER ORDERED that Cunnington's pending "Objection to 30 Day Extension" is DENIED, as moot.

The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel of record and to Myron Cunnington personally.

DATED this3 I day of March, 2020.

Chief Justice

Justices